Plaintiff v Defendants

1 By further amended originating motion, the plaintiff seeks an order in the nature of certiorari quashing the opinions of the first to fifth defendants (the Panel) dated 25 July 2019, and an order of mandamus remitting the referred medical questions to a differently constituted medical panel to be reconsidered in accordance with law.

2 The members of the Panel did not participate in the hearing.[1] Rather, the orders were opposed by the sixth defendant employer, Boeing Aerospace Pty Ltd, (hereinafter the defendant).

3 The Panel was asked to consider injuries relating to the plaintiff's lower back and his mind. A key issue in relation to the back was the nature of an injury suffered by the plaintiff in May 2012.

4 Insofar as his back was concerned, the Panel concluded that the plaintiff had a mild persisting back dysfunction as a consequence of constitutional lumbar and cervical spondylosis and, further, that he suffered only a temporary exacerbation of his back condition in May 2012 which had resolved.

5 The primary complaint of the plaintiff was that this finding constituted a material 'mistake of fact' (ground 1). It was also submitted that the Panel failed to provide adequate reasons (ground 2).

6 For reasons expressed below, I have rejected the plaintiff's claims.

7 The plaintiff commenced working for the defendant on 5 September 2011 as an aerospace worker. He was 43 at the time.

8 On 30 May 2012, the plaintiff made a claim for injury to his lower back when pulling a bag off a tool at work on 22 May 2012, which was initially accepted.

9 The plaintiff returned to work on 28 May 2012 on light duties. On 10 August 2012 he resumed his full pre-injury duties.

10 By notice dated 7 February 2013 the plaintiff was advised that his entitlement to medical and like expenses would cease as of 14 March 2013 on the basis that he no longer required treatment.

11 In January 2016 the plaintiff submitted a separate claim for anxiety and depression as a consequence of bullying. He ceased work in January 2016 following chest pain (which he attributed to stress in the workplace) and was certified unfit for work from 13 February 2016 to 10 August 2016. He was later terminated on 28 September 2016 due to his psychological condition.

12 On or about 27 November 2018 the plaintiff submitted a further claim for compensation for injuries affecting the 'back, legs, neck' arising throughout the course of his employment, which claim was rejected.

13 The plaintiff then issued proceedings in the Magistrates' Court seeking weekly payments from 11 July 2017, and medical and like expenses in respect of low back, neck, legs, and secondary psychological injuries.

14 On 6 May 2019 Magistrate Wright referred nine medical questions to the Convenor for Medical Panels for an opinion.

15 By letter dated 25 July 2019, the Panel provided its Certificate of Opinion and Reasons dated 25 July 2019 (the SBO). The Panel's opinion was as follows:

Question 1 What is the nature of the Plaintiff's medical condition relevant to each of the following alleged injuries:

a. injury to the lower back;

b. Injury to the neck;

c. Injury to the legs;

d. secondary psychological injury.

"the alleged injuries"

Answer: In the Panel's opinion, Mr Iannacone is suffering from mild persisting back and neck dysfunction, with referred pain to the right leg, but without radiculopathy, as a consequence of constitutional lumbar and cervical spondylosis.

The Panel is of the opinion that there is no intrinsic medical condition of the legs, and Mr Iannacone is not currently suffering from any secondary psychological injury.

Question 2 Was the plaintiff's employment a significant contributing factor to the neck condition;

Answer: The Panel is of the opinion that Mr lannacone's employment was not a significant contributing factor to his persisting neck dysfunction, which arose as a consequence of constitutional cervical spondylosis, nor to the recurrence, aggravation, exacerbation, acceleration or deterioration of pre-existing constitutional cervical spondylosis, in any way.

Question 3 As at 11 July 2017, did the plaintiff have any incapacity for pre injury work?

Answer: No.

Question 4 If "yes" to 3 above, was that incapacity materially contributed to by or resulted from any and if so which of the alleged injuries?

Answer: Not applicable.

Question 5 In the period 11 July 2017 to the date of the Medical Panel's examination, did the plaintiff have:

a. a current work capacity;

b. "no current work capacity"?

Answer: In the Panel's opinion, Mr Iannacone had no present inability arising from an injury such that he is not able to return to his pre-injury employment.

Question 6 If "Yes" to question 5(b),

a. was the plaintiff likely to continue indefinitely to have "no current work capacity"

b. did that incapacity result from or was it materially contributed to by any and if so which of the alleged injuries:

Answer: Not applicable.

Question 7 As at the date of the Medical Panel's examination does the Plaintiff have:

a. a current work capacity;

b. "no current work capacity"?

Answer: The Panel is of the opinion that Mr Iannacone has no present inability arising from an injury such that he is not able to return to his pre-injury employment.

Question 8 If "Yes" to question 7(b),

a. is the plaintiff likely to continue indefinitely to have "no current work capacity";

b. does that incapacity result from or is it materially contributed to by any and if so which of the alleged injuries?

Answer: Not applicable.

Question 9 As at the date of the Medical Panel's examination, what is the extent to which any

a. physical condition

b. psychiatric condition

of the plaintiff results from or is materially contributed to by an and if so which of the alleged injuries?

Answer: The Panel is of the opinion that Mr Iannacone does not have any physical or psychiatric condition which results from or is materially contributed to by any of the alleged injuries.

16 On 20 March 2018, the plaintiff lodged a serious injury application pursuant to s 134AB of the Accident Compensation Act 1985.

17 The plaintiff alleged, inter alia, that he had been bullied and harassed by his supervisor between May 2012 and December 2015, resulting in a primary psychological injury. The plaintiff further claimed that his physical injuries arose as a result of heavy and awkward work throughout the course of his employment.

18 On 5 April 2019, Judge Wischusen referred nine medical questions to the Convenor for an opinion.

19 By letter dated 25 July 2019, the Medical Panel provided its Certificate of Opinion and Reasons dated 25 July 2019 (the SIO). The opinion of the Panel was as follows:

Question 1 As at the date of the Medical Panel's examination, what is the medical condition of the plaintiff's:

a. Lumbar spine;

b. Cervical Spine;

c. Mind

Answer: In the Panel's opinion, Mr Iannacone is suffering from mild persisting back and neck dysfunction, with referred pain to the right leg, but without radiculopathy, as a consequence of constitutional lumbar and cervical spondylosis, and from an adjustment disorder with anxious and depressed mood, in remission with treatment.

Question 2 As at the date of the Medical Panel's examination, is the worker's employment with the Defendant in fact or could it possibly have been-

(a) a significant contributing factor; or

(b) a contributing factor-

to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the plaintiff's mind?

Answer: In the Panel's opinion, Mr Iannacone had no pre-existing condition of his mind.

Question 3 As at the date of the Medical Panel's examination, does the plaintiff's employment materially contribute to:

a. Any primary condition of the plaintiff's mind?

b. Any secondary condition of the plaintiff's mind?

Question 4 Are any, and if so which, of the medical conditions identified in Question 1 permanent (i.e. likely to persist for the foreseeable future)?

Answer: The Panel is of the opinion that Mr lannacone's persisting back and neck dysfunction, as a consequence of lumbar and cervical spondylosis and adjustment disorder with anxious and depressed mood in remission with treatment are permanent.

Question 5 Disregarding any psychiatric consequences of physical injury, does the Plaintiff have, in respect of any medical condition identified in answer to Question 3, a current work capacity for suitable employment?

Answer: Yes.

Question 6 If the plaintiff has a capacity for suitable employment, which of the following would constitute suitable employment for the plaintiff:

a. Warehouse picker and packer as identified in the report of Recouvre (sic) dated 13 September 2019 (sic)

b. Product Assembly Worker as identified in the report of Recouvre (sic) dated 13 September 2019 (sic)

c. Forklift Driver as identified in the report of Recouvre (sic) dated 13 September 2019 (sic);

d. Courier or Truck Driver as identified in the report of Recouvre (sic) dated 13 September 2019 (sic)

Answer: The Panel is of the opinion that Mr Iannacone has a capacity for suitable employment and that the positions of warehouse picker and packer, product assembly worker, forklift driver and courier or truck driver, would constitute suitable employment for Mr Iannacone.

The Panel is of the opinion that there is no psychiatric impediment to any of the listed employment options.

Question 7 If the plaintiff has a capacity for suitable employment:

a. For how many days per week and hours per day can he perform this employment:

i. Currently?

ii. In the foreseeable future

iii. What restrictions (if any) would be placed on the work that he can do:

1. Currently;

2. In the foreseeable future?

Answer: In the Panel's opinion, Mr Iannacone has a full-time capacity for unrestricted suitable employment, currently and in the foreseeable future.

In the Panel's opinion there is no psychiatric impediment for full-time suitable employment currently and in the foreseeable future.

Question 8 If the plaintiff has an incapacity for suitable employment, does it result from or is it materially contributed to by:

(a) the medical condition of the lumbar spine alone?

(b) Medical condition of the cervical spine alone?

(c) the condition of the plaintiff's mind alone?

Answer: The Panel is of the opinion that Mr Iannacone has no present inability arising from a physical injury of either the lumbar or cervical spine, to return to work in his pre-injury employment, but has a capacity for suitable employment, but not his pre-injury employment, by virtue of his mental condition alone, which is materially contributed to by the claimed mind injury.

Question 9 Is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

Answer: In the Panel's opinion, Mr lannacone's incapacity for his pre-injury employment, attributable to his mental condition, is permanent.

20 The majority of the Panel's reasons in the SIO and SBO are identical. For that reason, the discussion below deals primarily with the Panel's reasons as set out in the SIO, with references to the SBO where necessary. Consistent with the grounds raised, the focus is on the low back and mind given the plaintiff claimed that he could not work because of his psychiatric condition and his back pain.

21 The Panel noted that it formed its opinion with regard to the documents referred to in an enclosure; the history provided by the plaintiff; and the findings at the examinations of the plaintiff (on 25 and 28 June 2019).

22 The Panel defined the issues in dispute as relating to, inter alia, the nature of the plaintiff's medical condition of the low back.

23 The documents in the enclosure included the submissions placed before the Panel, which draw attention to the issue of whether the plaintiff suffers ongoing symptoms and pain in his back (inter alia), related to work injuries sustained during employment, or whether he suffered only temporary aggravation of a pre-existing lumbar disc disease in May 2012 from which, in relation to the lower back, he had effectively recovered.

24 In respect of the lumbar spine, the Panel noted that the plaintiff had a history of injury to the lower back, left knee and back of the left knee from an incident in May 1996.

25 In relation to the claim of 30 May 2012 (described as 'the first claim'), the Panel recited the circumstances of the May 2012 injury wherein the plaintiff was pulling off a layer of plastic from a 'skin' when he felt a sudden pain in the lower back. He consulted a general practitioner that day, and saw his own practitioner on the following day, who prescribed medications. However, he told the Panel that, by the time of the plaintiff's review by his treating general practitioner on 30 May 2012, his low back pain 'had improved', though he was complaining of neck pain. He thereafter continued to complain of low back pain, and was referred to a rheumatologist.

26 The Panel recorded that the plaintiff was seen by the rheumatologist, Dr Alex Stockman, on 10 August 2012, who stated that the plaintiff's low back condition had 'now recovered'.

.... noted that [the plaintiff's] low back pain improved to the point where he was described on 23 August 2012 by his treating physiotherapist as being pain free, and that he was certified fit to resume his pre-injury duties by his general practitioner on 30 August 2012.

28 The Panel recorded the plaintiff's statement that, notwithstanding those reports, he had continued to complain of intermittent low back pain for which he took medication, but nevertheless continued working in his pre-injury employment.

29 The Panel noted that the plaintiff said that in August 2015 he suffered an aggravation of his low back condition, was certified fit for alternative duties for a short period, and then resumed his full pre-injury duties.

30 The Panel noted that the plaintiff made a further claim for anxiety and depression as a consequence of bullying on 5 January 2016 and was certified unfit for work from 13 February 2016 to 10 August 2016 as a result of this claim (described as 'the second claim'). The plaintiff's employment was then terminated on 28 September 2016 on the basis of his inability to perform his duties due to his psychological condition.

31 The Panel recorded that the plaintiff said his back pain later deteriorated in December 2016, at which time he consulted his general practitioner and a CT-scan was taken in May 2017. The plaintiff said that his back pain increased and, in September 2017, an MRI of the lumbar spine was taken. On 27 November 2018 he subsequently submitted another claim for 'back, legs and neck' throughout the course of his employment (the 'third claim').

32 The Panel then recorded the plaintiff's physical complaints of constant pain in the lower back radiating to the right buttock and right leg, extending as far as the right calf.

33 The Panel stated that on clinical examination the plaintiff walked normally and was able to stand on his heels and toes. The Panel noted that tenderness to palpation was noted in the lumbar areas, with no muscle spasm, and that range of motion of the lumbar spine was moderately restricted in all directions, except rotation, which was normal. Neurological examination of the upper and lower limbs revealed normal power, reflexes, and sensation, with no clinical evidence of radiculopathy.

34 The Panel also recorded details of the medical imaging of the cervical and lumbar spine, which included an x-ray of the thoraco-lumbar spine of 30 May 2012, which generally showed 'minor degenerative changes.'

... [the plaintiff] is suffering from mild persisting back and neck dysfunction, with referred pain to the right leg, but without radiculopathy, as a consequence of constitutional lumbar and cervical spondylosis.

36 In the SBO, the Panel included the following statement in respect of the alleged lumbar spine injury:

Based on [the plaintiff's] history and the documented recovery in his lower back symptoms that had occurred by August 2012, the Panel concluded that [the plaintiff] suffered from a temporary exacerbation of pre-existing lumbar spondylosis, which resolved.

As the Panel concluded that [the plaintiff's] physical injury had resolved by August 2012, and there is no current secondary psychiatric injury arising as a consequence of the now resolved physical injury. He is currently suffering from cervical and lumbar spondylosis of a constitutional nature, which has not been affected by his employment, the Panel concluded that as at 11 July 2017, Mr Iannacone did not have any incapacity for his pre-injury work.

38 In respect of the mind, the Panel recorded that the plaintiff said he had been bullied from 2013 to 2015 and had reported the bullying in June 2015, as a result of which he participated in a mediation. The plaintiff said that the episode of chest pain he experienced in January 2016 was attributed to stress.

39 The Panel noted that the plaintiff said that he sought no mental health assistance for issues relating to either his physical difficulties or the bullying between 2012 and 2016. The Panel then recorded the plaintiff's psychiatric symptoms on ceasing work due to the bullying, noting that the plaintiff continued to see a psychologist on an ongoing basis.

[The plaintiff] said that between 2012 and 2016 he had no psychiatric treatment because he felt fine. In relation to the psychological impact of the back and leg physical symptoms, he currently reports only frustration at his inability to undertake previously enjoyed activities such as bushwalking and fishing and some limitation of sexual activity.

41 Both sets of reasons record the Panel's findings on mental examination, stating that the plaintiff made good eye contact, forming easy rapport, and that he smiled intermittently. There was no formal thought disorder and the content of his thought was disability focused. There was no evidence of any difficulty with cognition, concentration or memory

• not suffering from any secondary psychiatric injury as a consequence of his resolved physical injuries; and
• was suffering from an adjustment disorder in remission with adequate treatment which arose as a consequence of the bullying.

43 As a consequence of those findings, the Panel concluded that the plaintiff's employment had materially contributed to the plaintiff's adjustment disorder.

44 The Panel then considered the plaintiff's work capacity, noting that the plaintiff considered he would be unable to do the nominated jobs as a result of his mental condition and back pain.

45 The Panel, however, concluded that those employment options would not exceed the plaintiff's psychological tolerances.

46 Lastly, the Panel noted the reports of the independent psychiatrists who all opined that the plaintiff was suffering from a work-related adjustment disorder which arose as a result of the alleged bullying. The Panel also agreed with the opinion of Associate Professor Peter Doherty, who had opined that the plaintiff's adjustment disorder was resolving and he had a capacity for work.

The Medical Panel (MP) in respect of both opinions (Magistrates Court Referral M119/1472 and the County Court Referral M119/1107) erred in law by making a material mistake of fact falling into jurisdictional error in finding:

(i) the Worker had suffered from a temporary exacerbation of pre-existing lumbar spondylosis which had resolved;

(ii) the Worker was suffering from a consequence of "constitutional" lumbar spondylosis;

(iii) the independent psychiatric medical examiners "all opined" the Worker was suffering from a work-related adjustment disorder which arose as a result of the alleged bullying (i.e. "primary psychiatric injury");

(iv) that the Worker was not suffering from a "secondary" psychiatric condition which was significantly contributed to by the accepted lower back injury.

48 In oral submission, the plaintiff's Counsel conceded that he was not making a 'no evidence' point.[2] Rather, reliance was placed on Chang v Neill ('Chang'),[3] where the Victorian court of appeal identified that, in certain limited circumstances, an error about a fact, which is not a 'jurisdictional fact' in the traditional sense, may constitute jurisdictional error.

49 Ordinarily, errors of non-jurisdictional fact are regarded as errors made in the exercise of jurisdiction and so are not amenable to review. As cited by the defendant, Mason CJ stated in Australian Broadcasting Tribunal v Bond:[4]

The expression "judicial review", when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.

50 The court in Chang noted that it is a more recent proposition that errors about a 'non-jurisdictional fact' may constitute a jurisdictional error.[5] The court examined a number of authorities, commencing with the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT[6] and ultimately stated:[7]

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material - properly construed - is an essential feature of a valid exercise of the function.

Ground 1(i): Finding of temporary exacerbation which had resolved

51 The plaintiff relied on the following finding in the SBO:

Based on [the plaintiff's] history and the documented recovery in his lower back symptoms that had occurred by August 2012, the Panel concluded that [the plaintiff] suffered from a temporary exacerbation of pre-existing lumbar spondylosis, which resolved.

52 The plaintiff submitted that, although this finding was not duplicated in the SIO, the two opinions could be effectively regarded as forming the one opinion i.e. that the SIO was 'infected' by the opinion in the SBO in circumstances where the Panel was the same in each case, and the examinations took place on the same day.

53 He submitted that the Panel erred in finding that the back injury had 'resolved' in circumstances where the plaintiff continued to attend and seek treatment for back pain after July/August 2012, including in August 2015. The plaintiff cited a number of attendances (though, on close examination, many appeared to be unrelated to the back).

54 In oral submission, the plaintiff's Counsel highlighted that this was the primary case,[8] and that the Panel should have found that the May 2012 injury caused an aggravation of his pre-existing lumbar spondylosis which was rendered symptomatic by reason of the May 2012 incident, and thereafter continued.[9] This was consistent with the report of the Orthopaedic Surgeon, Mr Russell Miller, who diagnosed an aggravation of degenerative disease, as well as that of Dr David Fish.

55 Subsequent to the hearing, the plaintiff's Counsel also provided a recent decision of Ierodiaconou AsJ in Rafati v Victorian WorkCover Authority[10] in support of this ground.

56 The defendant highlighted that the test under this ground was stringent so that even if there was an error (which there was not), this was not enough as it needed to be a serious error going to jurisdiction.

57 The defendant suggested that the plaintiff's submissions proceeded on an incorrect premise that the Panel's finding was that the underlying lower back condition resolved entirely when the Panel made no such finding. Rather, it recorded that the plaintiff stated that he continued to complain of intermittent low back pain, consistent with his degenerative condition. Such ongoing intermittent episodes were consistent with the underlying condition as found by the Panel.

58 The defendant highlighted that the plaintiff did not identify any contemporaneous material contrary to the statements in the reports that the plaintiff's symptoms had resolved in August 2012 at which time he was 'pain free.'

59 In reality the plaintiff's ground was an attack on the merits of the conclusion that the plaintiff's condition was a consequence of his constitutional lumbar spondylosis unaffected by his ongoing employment. This was a matter for the Panel's medical expertise.

60 In any event the conclusion rested on other findings as follows:

• the plaintiff had a history of injury to the lower back from an incident in May 1996;
• the plaintiff told the Panel that by 30 May 2012, his low back pain 'had improved';
• plain x-rays of the thoraco-lumbar spine dated 30 May 2012 showed minor degenerative changes;
• contemporaneous medical reports contained in the referral materials indicated that the symptoms of the May 2012 injury had sufficiently resolved by August 2012 for the plaintiff to be described as 'pain free' and certified fit to resume employment.

61 In oral submission, the defendant highlighted that the Panel was entitled to come to the view it came to in the light of its own expertise and having listened to the worker.

62 First, I am unable to be satisfied that the plaintiff has identified any 'factual error' as discussed in Chang. As the court highlights, the ground includes a failure to have regard to relevant factual material or the misconstruction of such material.[11] The authorities in this area further tend to relate to facts which can be characterised as 'incorrect' or 'mistaken.' Those examples include whether a panel mis-recorded a worker's statement about whether her work duties had got lighter as opposed to heavier,[12] and whether a panel misinterpreted a diagnosis of a previous panel.[13]

63 This may be compared with the challenged finding here, which is that the plaintiff 'suffered from a temporary exacerbation of a pre-existing condition which resolved.' As well as the Panel's expertise, this finding was expressly based on other evidence relating to the plaintiff's history and documented recovery. It does not concern some individual fact which is demonstrably 'incorrect.' Rather, in suggesting that the Panel was 'mistaken', the plaintiff effectively seeks to engage in merits review of a significant finding of the Panel.

64 The other difficulty with this ground is that the submissions in support appeared to presume that the back needed to recover completely to justify the relevant finding. However, it was the 'temporary exacerbation' which is said to have resolved - not the condition overall. This is made clear by the finding in the immediately preceding paragraph that the plaintiff is suffering from 'mild persisting back and neck dysfunction.'[14]

65 The fact that the plaintiff may have subsequently sought help for his ongoing back condition is therefore not fatal to the finding that the May 2012 'exacerbation' was resolved.

66 However, even if the plaintiff's ground is sustainable in principle, the finding challenged is not 'mistaken' or 'incorrect'. Although minds might differ as to the characterisation of the events, there was clearly evidence which could support the Panel's conclusion that there was a 'temporary exacerbation' in May 2012 which resolved. This included:

• his physiotherapist, Anique Granger, recorded that the plaintiff's symptoms had 'resolved' on 9 August 2012, and further reported that he was now 'pain free' on 23 August 2012;
• the rheumatologist, Dr Stockman, opined that the plaintiff had 'now recovered' on 10 August 2012 (although he was to continue with exercises);
• the plaintiff ultimately returned to normal duties from August 2012;
• his general practitioner, Dr Pheng Low, reported that the plaintiff did not present at the Altona North medical clinic in relation to back pain between August 2012 and November 2012, or between November 2012 and December 2016;
• the consultant occupational physician, Dr David Barton, opined that the plaintiff had recovered from his back problem, noting in particular that the plaintiff had little contact with his doctors regarding his back condition, despite seeing them on a regular basis for other problems.

67 As well as the matters cited above, there is also the expertise of the Panel. Thus, the ultimate question of whether the May 2012 incident constituted a temporary, and resolved, exacerbation was an evaluative judgment given to the Panel who had the expertise to assess it. In circumstances where there was also other evidence available to support its conclusion, I am unable to be satisfied that the Panel made the 'material mistake of fact' as alleged.

Ground 1(ii): Finding of 'constitutional' lumbar spondylosis

69 The plaintiff submitted that there was no evidence at the time of commencing employment that he had any injury, incapacity, or treatment for a back injury. He emphasized that he passed a pre-employment medical examination, and that the only back complaint dated back to 1996.

70 Insofar as the radiology was concerned, the plaintiff relied upon Rush J in Wilson v Liquorland Australia Pty Ltd ('Wilson')[15] when considering impairment from unrelated causes, who stated:[16]

The 'constitutional spondylosis' demonstrated by the CT scan Report alone, with no evidence of any associated injury, pain or impairment, could not be considered as providing such evidentiary basis.

71 The plaintiff also cited two recent decisions: Morrison v Melbourne Pathology Pty Ltd ('Morrison')[17] and Ben-Anthanasaidis v Royal Melbourne Institute of Technology ('Ben-Anthanasaidis').[18] He submitted that in both decisions the respective panels were found to have erred in finding that the relevant work-related injuries caused only temporary aggravations or exacerbations which resolved.

72 The defendant highlighted that the Panel's unchallenged reasons contradicted the plaintiff's suggestion that there was no impairment as at November 2011. Thus, they recorded the history of back pain from May 1996 and the x-ray of May 2012 which showed 'minor degenerative changes.'

73 The defendant also submitted that Wilson had no application to the present case given it was concerned with apportioning the effects of a pre-existing impairment.

74 I consider that the ground as relied on is again misconceived given the diagnosis of the plaintiff's condition was at the heart of the issue given to the expert Panel to determine. It might be challenged on the basis of conventional grounds (e.g. failure to take into account relevant considerations and/or absence of evidence). However, to simply allege it was 'wrong' or 'mistaken' amounts to an attack on the merits.

75 In any event, the plaintiff's Counsel conceded that the plaintiff had a pre-existing spondylosis which was aggravated during the May 2012 incident.[19] He further relied on a report from Mr Miller in June 2018 who also described the plaintiff's condition as an 'aggravation' of degenerative disease.

76 In those circumstances, a key issue was whether the May 2012 incident caused a temporary aggravation of an underlying condition (as the Panel found), or whether the condition was affected in a permanent way (as the plaintiff effectively says). However, the challenge to this finding has failed for reasons given already.

77 To the extent necessary, I am also unable to find that the diagnosis was 'mistaken' or wrong. Rather, together with the plaintiff's concession, there was evidence from which it was open to come to the view the Panel did which included:

• the Panel's own expertise;
• a report from Dr Maurice Korman which documented that the plaintiff had developed pain in the lower back in the past when he was doing some shovelling;
• the radiology evidence which made reference to degenerative change;[20] and
• the notes of Dr Klaus Oppenheimer on 25 May 2012 and Dr Low on 21 November 2012, which both report scoliosis.

78 I am further prepared to accept that the finding of constitutional lumbar spondylosis implicitly carries a finding that the condition was not work related. Insofar as the ground incorporates an attack on this finding, the following evidence was also available to the Panel:

• the plaintiff's work history. As highlighted above, the plaintiff generally continued to work notwithstanding his back condition after August 2012, and only ceased employment in 2016 for reasons unrelated to his back pain. His back pain also increased in December 2016, some 11 months after he had ceased work;
• the pattern of infrequent attendances for back issues already cited notwithstanding the nature of the plaintiff's manual work.
• the report dated 28 August 2018 of consultant orthopaedic spine surgeon, Mr Roy Carey, who stated that any pre-existing degenerative changes could not be put down to anything occurring at Boeing, given the plaintiff had only commenced there 8 months prior to the problem developing.

79 The decisions of Morrison and Ben-Athanasaidis also do not assist the plaintiff.

80 In Ben-Athanasaidis, the court found error on the basis that the reasons did not explain how there could be an 'exacerbation of symptoms' (as found by the Panel) in circumstances where the plaintiff's condition had previously been asymptomatic. There were also other internal inconsistencies in the reasons.[21] The court did go on to find that the Panel had made an 'error' in finding the worker's employment duties had 'exacerbated' her symptoms.[22] However, this was in the context of an allegation that an irrelevant consideration had been taken into account. There was also a clear error in that case given the worker had previously suffered no symptoms.

81 Morrison was not concerned with a ground that there was a mistake of fact. Rather, it turned on whether reasons were inadequate and/or whether there was 'no evidence' for a decision. The court found that the reasons did not explain how the Panel derived its conclusion that there was exacerbation of right arm lymphoedema.[23] Further, it found that there was no evidence to support the Panel's finding of 'a (now resolved) temporary exacerbation of right upper limb lymphoedema' when there was nothing to suggest that Ms Morrison had ever suffered lymphoedema in her right arm prior to the relevant injury.[24]

82 In contrast, the Panel in this case did record some history of injury to the lower back, albeit it was some years before. The preponderance of the evidence was also that there was degeneration present in May 2012. As highlighted already, the plaintiff's own case in this court was also that there was an aggravation of a pre-existing condition.

Grounds 1(iii) and (iv): Mistake to say "all" psychiatrists opined adjustment disorder arose as a result of bullying ; also 'mistake' to say not suffering a 'secondary' psychiatric condition

84 The plaintiff focused on the SIO finding that the reports of the independent psychiatrists 'all opined' that he was suffering from an adjustment disorder which arose as a result of alleged bullying.

85 He submitted that this was wrong given Dr Albert Kaplan opined that it was multi-factorial, whilst Associate Professor Doherty opined that it was significantly contributed to by the lower back injury. The Panel therefore excluded a key part of the diagnosis of each of these experts.

86 In oral submission, the plaintiff submitted that the physical nature of his back condition caused him to take time off work, and produced an environment where he was bullied at work. It was also not 'correct' for the Panel to say that the secondary psychiatric condition was not related to employment.

87 The defendant submitted that all the independent psychiatric medical examiners did opine that the disorder was caused by the alleged bullying. The Panel's statement was therefore not incorrect.

88 Secondly, any error was immaterial in the sense outlined in Chang[25] given the finding was that the work-related exacerbation had resolved by August 2012. Further, it highlighted that the Panel's finding was not based on the opinions of other practitioners. Rather, it was based on its own expert examination. Finally, it highlighted that no psychiatric treatment was sought between 2012 and 2016 and that only 'frustration' was reported as a result of the physical limitations.

89 As apparently accepted by the plaintiff, the independent psychiatric examiners (including Dr Kaplan and Associate Professor Doherty) did 'all opine' that the worker suffered a work-related adjustment disorder which arose (in part) as a result of the bullying. The fact that some of them also opined that there was a contribution from the back condition does not give rise to a material mistake of fact with the result that ground 1(iii) must fail.

90 The challenge to the finding that the plaintiff was not suffering from a secondary psychiatric condition by reason of the back injury also constitutes a merits attack on the evaluative exercise committed to the Panel.

91 In any event, the finding that there was no secondary psychiatric condition was open given the finding that the work related physical injury was resolved.

The Medical Panel's reasons for opinion (in both opinions) did not meet the standards required by law as they did not explain the actual path of reasoning by which the Medical Panel in fact had formed its opinion and had failed to provide sufficient detail to enable a court to see whether the Medical Panel made an error of law constituting an error of law on the face of the record namely:

(i) The reasons do not explain the actual path of reasoning by which the Medical Panel had formed its opinion that the Plaintiff's lower back condition was not due to the nature of his employment between 2011 and 2016 and/or as a result of an aggravation to his lower back in August 2015.

(ii) The reasons do not explain the actual path of reasoning by which the Medical Panel had formed its opinion that the Plaintiff's lower back condition was constitutional in nature and no longer work related.

(iii) The Medical Panel failed to consider or ignored in its reasons the acceptance of liability and the determination of degree of permanent impairment to the Worker's lower back, which arose out of or in the course of his employment with his employer, when forming its opinion that the Plaintiff's lower back condition was "constitutional" in nature.

(iv) The reasons do not explain the actual path of reasoning as to why there was no diagnosis made in relation to the left shoulder after the Medical Panel had performed an examination of the left shoulder and reported its examination findings in the reasons but disregarded and/or ignored the left shoulder condition when arriving at its opinion in relation to whether the Worker had a current work capacity.

(v) The reasons do not explain the actual path of reasoning by which the Medical Panel had formed its opinion that the Plaintiff's heart condition was not work related.

(vi) The reasons do not explain the actual path of reasoning by which the Medical Panel formed its opinion that the Worker was not suffering from any secondary psychiatric injury which had arisen as a consequence of the worker's "now resolved physical injury".[26]

94 Section 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act) requires a medical panel to provide a written statement of reasons for its opinion.

95 However, those reasons do not need to be of a judicial standard. Rather, the High Court in Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot')[27] highlighted that a panel is not an arbitral or adjudicative body, and is not required to choose between competing arguments or contentions. Rather, its function is to form, and give its own opinion on, the medical questions referred to it by applying its own medical experience and expertise.[28]

96 Consistent with this function, the relevant principles are:

• the standard required is that the reasons of a panel must explain the panel's actual path of reasoning in sufficient detail to enable a court to see whether the opinion involves an error of law;[29]
• a panel is under no obligation to explain why it did not reach an opinion it did not form even if that different opinion is shown to have been formed by someone else;[30] and
• a panel's findings may be both explicit and implicit i.e. where a positive finding is made that one condition exists it may implicitly involve the rejection of an alternative condition.[31]

97 Finally, the reasons of a medical panel are entitled to a 'beneficial construction' in the sense that they should "not ... be scrutinised ... overzealous[ly] ... by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed".[32] The reasons of the panel must also be read fairly and as a whole.[33]

Grounds 2(i) and (ii): Failure to explain why condition is not due to nature of employment

98 The essence of the plaintiff's submissions in relation to grounds 2(i) and (ii) was that there was no path of reasoning to enable a court to see why the Panel did not find that the plaintiff's back condition was not due to the nature of his employment, considered overall.

99 The defendant submitted that the Panel was not required to provide reasons explaining why it did not form an opinion it had not formed. In any event, it was implicit from the Panel's conclusion as to the constitutional nature of the condition that the Panel did not consider the condition to have been caused by the course of employment.

100 In oral submission, the defendant highlighted that the issue in this case was similar to that which arose in Wingfoot where the High Court found that it was unnecessary for the Panel to explain why it rejected the opinions of doctors who said there was an aggravation.

101 Insofar as employment is concerned, it was not suggested that the Panel failed to have regard to the issue of whether the lower back condition arose throughout the course of employment. This appears to be appropriate given the explicit finding in the SBO as highlighted above. In both opinions, the Panel also records the description of the plaintiff's employment; records a detailed sequence of his employment history; and states that it has formed a different view to Dr Low regarding the condition and its 'relationship to employment.'

102 However, the complaint made by the plaintiff was that there were inadequate reasons. This cannot be sustained given, on the basis of Wingfoot, there is simply no obligation for the Panel to explain why it did not reach an opinion that it did not form i.e. to provide details as to why it did not find that the lower back condition was due to the nature of employment.

103 Even if this was not the case, I consider that the finding of a constitutional condition implicitly involves a finding that the condition was not affected by the plaintiff's employment.

104 The finding of a constitutional condition follows from a detailed consideration of the past history and sequence of events which documents, inter alia, the recovery in August 2012; the resumption of normal duties; the short break in August 2015 followed by a continuation of work; and the cessation of work for unrelated reasons. The reasons also includes a report of the physical examination and details of medical imaging which showed degenerative changes. The Panel then records its diagnosis based on its own expertise.

105 I consider that the reasons incorporate sufficient detail to enable the court to see whether the opinion that the condition was a constitutional one (and was not work related) involves any error of law.

Ground 2(iii): Failure to consider acceptance of liability

107 Counsel for the plaintiff clarified that the essence of this complaint was that the Panel had failed to provide sufficient detail to enable a court to determine why it did not accept the opinion of Dr Fish who supported that the injury was work related.

108 However, pursuant to the principles, above, there is no obligation on the Panel to expressly deal with the diagnosis of Dr Fish.

Ground 2(iv): Failure to explain reasoning re left shoulder

110 The plaintiff submitted that there was no diagnosis made in relation to the left shoulder, nor were any reasons given as to how the left shoulder injury affected the worker.

111 In oral submission, the plaintiff highlighted an earlier decision of a different panel that found that the plaintiff suffered a 6% whole person impairment left shoulder injury. He submitted that, although the Panel was not asked about injury to the shoulder, it ought to have considered the totality of the medical conditions in forming its opinion regarding work capacity (citing questions 3 and 5).

112 The defendant highlighted that the Panel was not asked to provide an opinion on the left shoulder and no claim was made in respect of that injury. This was consistent with the way the case was put to the Panel given the plaintiff himself said he could not do any of the nominated jobs 'because of his ongoing psychiatric condition and his back pain'- i.e. there was no mention of the shoulder.

113 In any event, given the findings of the Panel were that that he suffered only mild restrictions, it could be inferred that the Panel concluded that any mild left shoulder restriction would not materially affect the plaintiff's capacity to undertake the employment options.

114 There are a number of statutory provisions which highlight the importance of identifying the relevant injury to the Panel.

115 Thus, s 304 of the WIRC Act provides that a person referring a medical question to a Panel must give the Convenor a document specifying the injury to, or in respect of, which the medical question relates. Pursuant to s 302, the function of a Panel is further to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of employment referred by the relevant entity.[34]

116 The provisions of the WIRC Act therefore contemplate that the Panel direct attention to the question(s) asked, which are to be framed with respect to specified injuries.

117 In those circumstances, I do not consider that there was any obligation for the Panel to give its opinion (or provide reasons) in relation to the shoulder injury which was not specified as a relevant injury.

118 This position is fortified in the present case given the plaintiff himself focused only on his psychiatric condition and back when asked about his capacity.

Ground 2(v): Failure to explain why heart condition not work related

120 The plaintiff maintained that the Panel had not explained its path of reasoning in forming its opinion that the plaintiff's heart condition was not work related.

121 In oral submission, Counsel fairly conceded that the plaintiff had not raised the condition as work related,[35] but made reference to some parts of the defendant's submissions (which mentioned it by way of background). The court was also taken to a report of Dr Jeremy Hammond who cited various articles which suggested that there was a causal relationship between depression and cardiovascular disease, particularly if the depression was severe.

122 The defendant submitted that the Panel was not asked to give an opinion on the plaintiff's cardiac condition. There was further no requirement for the Panel to specifically address the reports of Dr Hammond.

123 In circumstances where the Panel was not asked to consider the heart condition, I am unable to be satisfied that there is any basis on which the Panel was obliged to even consider why the plaintiff's heart condition 'was not work related.' There can therefore be no obligation to provide reasons in relation to this matter.

Ground 2(vi): No reasons why not suffering secondary psychiatric injury

125 This ground was not withdrawn though it was not strongly advanced.

126 In any event, both sets of reasons include the express finding that the plaintiff was not suffering from any secondary psychiatric injury which had arisen as a consequence of his 'now resolved' physical injury.

127 The Panel has therefore clearly signified that it rejected the secondary psychiatric injury given there was no ongoing physical injury. This is sufficient to enable a court to see whether the opinion involves an error of law.

129 The result in this case is that the proceeding will be dismissed.

130 Both parties accepted that costs ought to follow the event in this case.[37]

131 In orders made on 13 May 2020 I reserved the sixth defendant's costs thrown away by reason of the adjournment that day. However, I accept the defendant's submission that it should now receive those costs thrown away in circumstances where the case was substantially recast, with the filing of detailed fresh submissions addressing the new grounds.

133 The plaintiff will be ordered to pay the sixth defendant's costs of the proceeding, including the sixth defendant's costs thrown away by reason of the adjournment granted on 13 May 2020, on the standard basis.

[1] The first to fifth defendants advised, by letter on 18 March 2020, that they would be taking the Hardiman position, and so would not appear nor be represented at the trial, and would submit to such orders as the court might make, save that they would wish to be heard in the event that a costs order were proposed against them.

[2] Transcript of proceeding, 22 July 2020, 33.13.

[3] [2019] VSCA 151 ('Chang').

[4] [1990] HCA 33; (1990) 170 CLR 321, 341.

[6] [2013] FCA 317; (2013) 212 FCR 99.

[8] Transcript of proceeding, 22 July 2020, 48.13-8.

[10] [2020] VSC 444.

[12] Karabinis v Bendrups [2017] VSC 648.

[13] Rafati v Victorian WorkCover Authority [2020] VSC 444.

[15] [2014] VSC 545.

[17] [2018] VSC 477.

[18] [2019] VSC 674.

[19] Transcript of proceeding, 22 July 2020, 16.21-5, 18.12-8.

[20] The remarks of Rush J in Wilson v Liquorland Australia Pty Ltd [2014] VSC 545 cited by the plaintiff were concerned with a different issue as to whether the relevant scans showed an impairment for the purposes of the Wrongs Act. They do not suggest that the scans cannot be looked at, with the other evidence, in this case.

[21] Ben-Athanasaidis v Royal Melbourne Institute of Technology [2019] VSC 674, [60].

[23] Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [35].

[25] [2019] VSCA 151, [94], [100].

[26] Ground 2 (vii) of the plaintiff's further amended originating motion was abandoned at the hearing: Transcript of proceeding, 22 July 2020, 48.2-6.

[27] [2013] HCA 43; (2013) 252 CLR 480.

[32] Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29], quoting Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 272.

[33] See, eg., Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, 196 [60].

[34] See also Chang (n 3) [12]-[13].

[35] Transcript of proceeding, 22 July 2020, 47.13.

[36] The first to fifth defendants advised the court by email on 23 July 2020 that they did not seek to be heard as to costs, on the basis that no order for costs was to be made against them.

[37] Transcript of proceeding, 22 July 2020, 3.11-2, 50.25-6.